In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 23 May 2017

Conference Report - 'Moral Rights and New Technologies: Authorship, Attribution and Integrity in a Digital World'

For
those who may not be closely familiar with this area of intellectual property
law, moral rights are rights that protect the author’s personality. They
usually arise in the context of copyright law, and the most commonly discussed
moral rights include;

- The right of
attribution – the right of the author to be named as such.

- The right of the author
to publish anonymously and pseudonymously.

- The right of the author
to prevent the work of another from being credited to him or her (though not
always).

- The right of integrity
– the right of the author to object to alterations, distortions and mutilations
of the work.

- The right of
divulgation – the right of the author to be the first to release the work to
the world.

Creative
works are protected under two different types of philosophies: the copyright
systems of common law countries, and the author’s rights systems of civil law countries.

University of Glasgow

The
author’s rights systems originated within the Civilian traditions on the
European continent. This approach emerged in Germany as a means of justifying
the payment of authors for their works. In 1793, Fichte published an essay,
‘Proof of the illegality of reprinting: a rationale’, in which he separated the
concepts of form (the expression of the author, imbued with his very
personality) and content (the ideas contained within the text that the reader
is free to appropriate). This thesis gained popularity, and as a result,
protection within Germany for creative works came to be based on protection of
the expression of the author. His personality permeates the creative work, and
that is the reason why the work is protected. Economic rights merely flow from the personality
right, the personality right being based on the protection of the
author’s expression. Across the European continent, legal systems for the
protection of creative works are based upon the protection of the personality
of the author of a creative work. Moral rights in these systems are therefore
of great significance.

Copyright
systems within the common law traditions take a divergent approach. The
creative work – the poem, sculpture, painting or melody – is conceptually
reduced (or typified) to a piece of property. Within copyright systems (such as
the UK or the US), creative works are essentially treated as tradable
commodities to be bought and sold in the market. Since the creative object is
treated as a kind of property, the rights of the author per se have never been of paramount importance within the common
law legal traditions. Rather, the focus of protection within copyright systems is
the conceptualisation
of the creative work as a piece of property.

The US and the Berne
Convention

In
terms of international copyright protection, the U.S. had, until 1989, failed to
join the Berne Convention, the international framework of copyright protection
across (practically) the entire globe. The
reticence of the U.S. was due in large part to the moral rights provisions
contained within the Berne Convention, in Article 6bis, coupled with Berne’s
requirement of automatic protection to the author upon the creation of a work –
a marked contrast to the U.S. copyright system, which was then based on the
need for registration to enjoy rights [Berne Art. 5(2)]. In spite of these
reservations, the U.S. eventually decided to join Berne: the draw of international
copyright protection for its citizens and co-operation across the jurisdictions
of the signatory states became strong enough for the U.S. to wish to join, and
to make an attempt at incorporating moral rights into its legal landscape. To
deal with moral rights, the U.S. took the step of creating the ‘Visual Artists Rights Act of 1990’. On
01 March 1989 the U.S. acceded to the Berne Convention. The adherence of the U.S.
to its moral rights obligations under the Berne Convention was, and continues
to be, an extremely controversial topic amongst experts, since the U.S.
implemented moral
rights only for visual artists, which
are in themselves of particularly narrow and limited effect. Many experts
question whether the U.S. is meeting its obligations under the Berne
Convention’s moral rights clause at all.

The Conference

Kim Isbell of the US Copyright Office kicked off
the event by commenting on the current Study on the Moral Rights of Attribution and Integrity being carried out by
the U.S. Copyright Office. This study is the first domestic review of moral
rights since U.S. accession to the Berne Convention almost 30 years ago. The
purpose of the study is to:

“review
how existing U.S. law, including provisions found in Title 17 of the U.S. Code
and other federal and state laws, protects the moral rights of attribution and
integrity and whether any additional protection is advisable in this area.”

As
part of its Study, the U.S. Copyright Office held an event in April 2016 – Authors, Attribution, and Integrity: Examining Moral Rights in the
United States.
Professor Mira
Rajan Sundara
– a copyright expert with particular expertise on moral rights – attended this
event and it was there that the Glasgow Conference had its genesis. Professor
Rajan Sundara was invited by the U.S. Copyright Office to organise an event
designed to bring world leading copyright experts and representatives of
stakeholder groups together, to discuss digital challenges facing moral rights and
help to support the current U.S. study process.

Substantive
Presentations

We
began with case studies (through a moral rights lens, of course) on literature,
music sampling and music composition.

Mira Sundara Rajan

Mira Sundara Rajan presented on
literature, highlighting moral rights difficulties posed through posthumous
publications (Hemingway’s ‘A Moveable Feast’, and Fitzgerald’s ‘The Last Tycoon’), as well as the
difficulties of translations of Doctor Zhivago. Professor Sundara
Rajan also covered the fascinating issues surrounding the creation of an
authoritative Standard Edition (also posthumous) of the works of the prolific
national poet of India in the South Indian language of Tamil, Subramania Bharati.

Louise Harris, prominent sonic and audio-visual
artist based at the University of Glasgow, gave a presentation dealing with
situations in which her moral rights had been infringed. Specific difficulties
encountered by Dr Harris involve the performance of her audio-visual
compositions on equipment with insufficient bandwidth to competently perform
her work. This poor-quality bandwidth – as well as lack of three-dimensional
acoustic spaces – has led to situations in which she felt that her work had
been – to an extent – mutilated, and the essence of the work was lost.

In the middle of the
day, the presenters enjoyed a different kind of session, with David McGuinness
and Concerto Caldeonia offering a performance
and discussion of moral rights from the unique perspective of historical
Scottish music. The thought-provoking and enjoyable session delivered by the
enthusiastic musicians was a highlight of the day.

Day 2

Mr. Justice Arnold

Mr Justice Richard Arnold began day two of
proceedings with the keynote of the Conference – a most excellent and
impressive overview of moral rights law within the UK, as well as a brief
introduction of his current explorations into moral rights with Professor Rajan
Sundara.

Mr
Justice Arnold presented on the case, The Creative Foundation v Dreamland Leisure Limited
and others,
over which he presided in the High Court of Justice. This case involved a
Banksy mural, which had been removed from the wall of a building and shipped to
the U.S. for valuation and eventual auction. Mr Justice Arnold emphasised
during his presentation that, despite the UK not having particularly strong
moral rights per se, moral rights are
capable of being protected through other mechanisms of the law. In the
particular case in question, the decision hinged, rather than on a law of moral
rights, the law of lease-holding.

Mr
Justice Arnold also presented on his current work being undertaken with
Professor Sundara Rajan. This fascinating project concerns Elena Feranti (a novelist publishing under a
pseudonym), and whether authors have a right of pseudonymity in the UK. A
forthcoming article to be published by the illustrious pair will explore issues
on whether Article 8 of the European Convention of Human Rights might protect
Feranti’s pseudonymity, as well as whether a pseudonymity right might be
extrapolated from other areas within UK law.

The
rest of the second day focussed on the important issue of moral rights in the
digital environment. This is a concept currently in flux, as new technologies
allow users to intervene in creative works as has never before been possible.
The ways in which we understand authorship and what a creative work is are
being challenged with the ever increasing digital presence within our lives. Critically
assessing the conceptual challenges posed by digital innovations to existing
moral rights schemes is at the cutting edge of our understanding of moral
rights law.

Christian Geib, PhD candidate at the
University of Strathclyde, covered moral rights in Text and Data Mining, and
whether moral rights issues could be encountered in this area. Examples he
suggested included the data mining of particular creative works and whether the
results of such data mining could potentially infringe an author’s moral
rights.

Florian De Rouck

Florian De Rouck from Verhaegen
Walraevens, discussed artificial intelligence. He presented on the moral rights repercussions
regarding artificial intelligence, from the 1960’s software Aaron to the cutting edge
Google Magenta project, which is
designed to ‘advance the state of the art in machine intelligence for music and
art generation’. As it develops to greater and greater complexity,
artificial intelligence will surely destabilise our current understanding of
the concept of the author and the creative product.

Erin Simon

Erin Simon, Product Counsel from
Google, discussed the potential alternative legal mechanisms used in the U.S.
to protect moral rights, including the use of the various creative commons licences. For example, an
author may licence a creative work and require only that attribution is given –
a CC BY licence. Proponents of this approach argue that the creative commons
system protects moral rights in an indirect way.

Johannes
Grossekettler
discussed the moral rights implications of 3D printing. Where low resolution or
poor quality printers are used in replicating works, Johannes discussed the
potential moral rights issues that may apply in these circumstances.

Owing
to the truly multi-disciplinary aspect of the event, the final two speakers
were a particular treat. They are both successful artists who kindly gave us their view of moral rights and how their
work is affected by these rights. Ela Orleans spoke about her own
experiences of both her copyright and moral rights being infringed, and her
difficulties in this area. She expressed that she often feels frustrated with
YouTube and other platforming sites that do not do much in the way of
prohibiting infringement of her work.

Martha de Francisco

Martha de Francisco presented on her
work as a renowned tonmeister. Having
worked with Alfred Brendel for around twenty years and having recorded with a
great many other outstanding musicians, Martha has developed a prolific and
stellar career. Her work as tonmeister entails
recording and producing classical music. With specialist knowledge in classical
music, Martha understands the difficulties faced by musicians in interpreting
and lifting the music from the score and in turn is expertly able to capture
that music in recording. She posited whether moral rights should be accorded to
those in her highly-skilled and creative profession.

The Conference was truly a fantastic exploration of moral rights within
our digital world. These issues are only going to grow in importance as our
lives become ever more intertwined with the digital. Delegates from the
conference are planning to produce a book featuring artworks and music,
alongside the text, relating to the areas discussed at the Conference, which I
am sure will be a fascinating read. The group submitted comments to the U.S.
Copyright Office in relation to the ongoing moral rights study in the U.S. The
Conference was a most enriching event, with speakers of exceptional calibre and
of multidisciplinary reach.

From left to right:

Johannes
Grossekettler, Pravin Anand & Florian De Rouck

This
writer wishes to thank and acknowledge the kind assistance and expertise of
Professor Mira Sundara Rajan in the drafting of this blog.

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